Court rules Texas had no right to seize sect children

SAN ANGELO — A Texas appeals court ruled Thursday the state had no right to seize hundreds of children from a polygamist religious sect because it failed to prove they were in immediate danger of abuse. The decision halted ongoing custody hearings and raised the possibility of a reunion between children and parents.

The 3rd Court of Appeals in Austin ruled that a San Angelo judge exceeded her authority last month in ordering into foster care every child who resided at the Yearning for Zion Ranch, not just the teenage girls who Texas Child Protective Services said were at risk of being sexually abused by marriages to older men it said the sect arranged.

The ruling was by Justices Bob Pemberton and Alan Waldrop and Chief Justice Kenneth Law.

"The Department (CPS) did not present any evidence of danger to the physical health or safety of any male children or any female children who had not reached puberty," the panel wrote in its order.

About half of the more than 460 children placed in protective custody are babies or toddlers.

The decision was greeted with jubilation among parents who were gathered at a San Angelo courthouse for their children's status hearings, which were immediately placed on hold. Meanwhile, CPS officials wouldn't say if they planned to appeal the decision.

"Hurray. Praise the Lord!" said Sarah Barlow, 45, the mother of two children in foster care. "We're grateful for this."

Texas Rio Grande Legal Aid attorney Julie Balovich, whose organization filed the appeal on behalf of 48 mothers, said it was "about time a court stood up and said that what was happening to these families is wrong."

"It is a great day for families in the state of Texas," Balovich added later. "It's a great day for justice in Texas. It was the right decision."

Now in foster care

But it was not immediately clear how soon the children, scattered in foster care across the state, might return to the custody of their parents, followers of a breakaway Mormon sect known as the Fundamentalist Church of Jesus Christ of Latter Day Saints.

The ruling orders state District Judge Barbara Walther, who approved the mass removal from parental custody, to rescind her original order. Should the state appeal the decision to the 3rd Court or the Texas Supreme Court, the children could remain in state custody until it is resolved, legal experts said.

Officials showed little eagerness Thursday to discuss their plans in the biggest child custody case in Texas history. CPS issued a statement saying it would work with the Texas Attorney General's Office to figure out the state's next step.

But attorney general's spokesman Jerry Strickland said his agency was so far "not involved" in the case.

Although the suit was filed on behalf of 48 mothers seeking the return of their children, legal experts said it would likely apply to other parents in similar circumstances.

Rod Parker, a spokesman for the sect, said he expected attorneys for other parents to file paperwork this week to ensure they "get the benefits of this ruling."

Observers said it is possible that Walther could amend the original order, possibly to ensure that post-pubescent girls remain in state care.

The appeals court ruling was a bitter blow to Walther and CPS, whose investigators accompanied law officers on a week-long raid and search of the ranch in early April. The raid was based on calls placed to a domestic violence center by someone who identified herself as a 16-year-old mother and abuse victim inside the ranch. The caller is now believed to have been a hoax.

CPS experts, at a two-day custody hearing before Walther last month, argued that the FLDS had a "pervasive belief system" that groomed its boys to become sexual predators when they reached adulthood and taught girls to submit to underage marriage when they reached puberty.

Families could flee

But the appeals court said the state needed more than that to remove children from their parents. "The existence of the FLDS belief system as described by the Department's witnesses, by itself, does not put children of FLDS parents in physical danger," the ruling said in part.

"Even if one views the FLDS belief system as creating a danger of sexual abuse by grooming boys to be perpetrators of sexual abuse and raising girls to be victims of sexual abuse as the Department contends, there is no evidence that this danger is 'immediate' or 'urgent' ... with respect to every child in the community."

McCown said the appeals court didn't say children could not be removed from their families, only that Walther had overstepped her authority by issuing an emergency order. He said the state could still remove the children after a full trial.

But McCown said there is a risk that if the children are returned to their parents, they will be moved to another state, Canada or Mexico and be outside Texas' jurisdiction.

"One of the real dangers is flight, and the court doesn't address that at all," McCown said.

'A wonderful decision'

As they absorbed the ruling on the lawn of the Tom Green County courthouse in San Angelo, several mothers said they were uncertain about their next move. Parker, the FLDS spokesman, said he expected sect members throughout the region to gather at the ranch late Thursday.

The mood will be quite different, he said, from a day earlier, when two CPS officials arrived at the front gate seeking six other children they believed were being sheltered there. The ranch residents would not allow the officials to enter without a search warrant.

"This is a wonderful decision," Parker said of the appeals court ruling.